During a period of time in 1841 and 1842, there were two governments vying for legitimacy in Rhode Island, the one that had been in existence from the time of the Declaration of Independence and another led by Thomas Wilson Dorr, who objected to the state’s voting requirements. Originally, Rhode Island allowed only landowners to vote. It was an acceptable enough system in a territory where almost all of the citizens were farmers. But with increased industrialization and the migration of many to cities, the fraction of people eligible to vote became progressively smaller, concentrating power in the hands of a land-owning elite. No women or blacks were eligible to vote and by the early 19th century only a minority of white men possessed that right.

Unable to change the structure internally, people took matters into their own hands, prompting the Dorr Rebellion. Rival constitutional conventions were held, leading to parallel elections, and to the separate election of both Dorr and Samuel Ward King as governor of the state. On June 24th, 1842, the King government declared the state to be under martial law. Martin Luther, who sided with Dorr, was alleged to be engaged in traitorous activity and the King government ordered him arrested. Luther Borden effected the arrest, breaking into and searching Martin Luther’s home, and damaging his property in the process.

Martin Luther sued, alleging trespass by Luther Borden. Borden defended himself, claiming he was acting in his official capacity and with the authority of government. Martin Luther countered, asserting that the King government was illegitimate.

Who was to decide which government was the legitimate one? The only possibility was the Supreme Court of the United States, which was confronted with the trespass claim in the famed case of Luther v. Borden. It was in this case that the Supreme Court first articulated the “political-question doctrine.” A copy of the Court’s decision can be read here. Essentially, this doctrine asserts that there are some controversies that are simply not within the legitimate purview of the judiciary to decide. The doctrine is not firmly defined and it has shifted in application over the years. But it is not simply that an issue is controversial that can invoke the doctrine — after all, the Court did not hesitate to make rulings on abortion, racial desegregation, affirmative action, the death penalty, and even the infamous counting of Florida votes ten years ago — an issue that at first blush might seem to be the paradigm of a “political question.” Rather, the federal courts must decline to make decisions in cases particularly where they lack sufficient standards to apply.

The political-question doctrine is centrally at issue in American Electric Power v. Connecticut, which the Supreme Court agreed to hear last week. The case is one of four prominent climate-change cases that relies on the legal theory of “public nuisance.” A “nuisance” results when there is a substantial interference with the right to use and enjoy land that results from the defendant’s activitity, with a “public nuisance” being an unreasonable interference with a right common to the general public. The interference need not be intentional, but can arise from negligence.

The American Power case was brought against a number of power companies by several states — including pipsqueak troublemaker Rhode Island — as well as some private land trusts. Application of the nuisance theory is the same in this case as it has been in the others: The defendants engage in an activity that releases greenhouse gases into the atmosphere, impacting the climate and resulting in an interference with the public’s use and enjoyment of land.

The theory is tidy and almost certainly correct in the abstract.

But even so, every district court that has been presented with this nuisance theory has determined that it is not something the judiciary can rule on because it is a political question. The reasons for doing so are, to me, compelling. The devil is indeed in the details.

Begin by considering the enormous difficulties involved in sorting out causation. The Earth’s climate system is extremely complex: it took roughly 100 years since Svante Arrhenius first quantified the relationship between temperature and atmospheric CO2 in 1896 for climate scientists to settle on a consensus that anthropogenic release of greenhouse gases is warming the planet. And this factor does not operate in isolation, with a number of other natural influences having both warming and cooling impacts. In addition, at least some of the greenhouse gases generated by humanity are absorbed by the oceans and by vegetation. Indeed, it was once thought by many climate scientists that the oceans would provide a sufficient sink to accommodate any level of greenhouse-gas emissions that humans could conceivably produce.

The result is a system in which it is truly impossible to correlate particular acts of generating CO2 or other greenhouse gases with particular climate events. It is very much like Philip Merilees’ concoction of the “butterfly effect,” in which we recognize that the chaotic nature of weather might allow the beating of a butterfly’s wings in Brazil to set off a tornado in Texas. But even with such an understanding, it is inconceivable that we could ever identify the butterfly who caused the problem. Is the answer to condemn every winged insect on the planet?

Those bringing these nuisance-based lawsuits accordingly rely on a theory of “contribution,” claiming that there must be liability on the part of power companies, petroleum companies, etc. because they contribute to the problem. There is no question that they do. But so does almost every single one of the 7 billion people on the planet as they engage in activities that contribute to the generation of greenhouse gases. It is surely possible to single out power companies and assert that they contribute more than an individual like me. But it is equally possible to single out any large group of people: the residents of Los Angeles, Chicago, and Houston, say, or perhaps all people who choose to have children. These large groups contribute greatly to the warming issue.

It is, moreover, simplistic to suggest that power companies and petroleum companies should not engage in their business. They are far too important to maintaining the standards of living that citizens expect and for providing a critically important sector of the world’s economies. It seems plainly unwise to leave it to a small number of judges to decide how to balance the intricate interconnection of these issues — the risk to the environment, the effects on human health, the socioeconomic impacts, and many others. It is better left to the policy determinations made by the legislative and executive processes of government, as imperfect as those may also be.

Currently, the decision of the two judges on the Second Circuit Court of Appeals, who reversed the district court’s determination that the issue is a political question, stand alone in asserting that the judiciary may apply tort nuisance principles to the issue of climate change. Their reasoning can be found here. When I commented some months ago on the Comer v. Murphy Oil case in the Fifth Circuit (see here), I suggested that clear guidance from the Supreme Court would soon be needed. I, for one, am eager to see what they decide.